R v MacDonald
[2017] ACTSC 59
•15 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v MacDonald |
Citation: | [2017] ACTSC 59 |
Hearing Dates: | 2 February 2017 |
DecisionDate: | 15 February 2017 |
Before: | Burns J |
Decision: | See [28]-[34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Burglary – Theft – Obtaining Property by deception – Damaging Property – Escaping Lawful Custody - Breach of Good Behaviour Orders – guilty pleas - terms of imprisonment. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 116(3), 160 Crimes (Sentencing) Act 2005 (ACT) s 72 Criminal Code 2002 (ACT) ss 308, 312, 326 Magistrates Court Act 1930 (ACT) s 90B |
Parties: | The Queen (Crown) Jacob Robert Howard MacDonald (Offender) |
Representation: | Counsel Ms Burgoyne-Scutts (Crown) Mr Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Prudential Legal Solutions (Offender) | |
File Numbers: | SCC 28A of 2016; SCC 28C of 2016; SCC 29 of 2016; SCC 211 of 2016 |
BURNS J:
Jacob Macdonald, you have entered pleas of guilty to a number of offences which occurred on 9 March 2015, 18 April 2015 and 2 September 2016. It now falls for me to sentence you for those offences.
On 9 March 2015, you committed offences of aggravated burglary and theft. These charges are found on Supreme Court file SCC 28A of 2016. Between 5.08 am and 5.20 am on 9 March 2015, you, in company with an unknown male, forced your way into the ACT Convenience Store and stole cigarettes to the value of $5,207.13. The maximum penalty for the offence of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (the Criminal Code), is 20 years imprisonment, a fine of $300,000.00 or both.
You were charged with these offences by way of summons. The summonses were returnable in the Magistrates Court on 11 September 2015 and were thereafter adjourned on a number of occasions until on 7 December 2015 you pleaded not guilty. On 15 December 2015, you were committed for trial on those charges.
You offered to plead guilty to these offences as part of an offer made to the Crown on 16 March 2016. That offer was conditional on the basis of the Crown discontinuing other charges. Those representations were rejected and all of these charges were listed for trial to commence on 5 September 2016. On 31 August 2016, at the callover before the Chief Justice, you made an unconditional offer to plead guilty to these charges and you formally entered pleas of guilty after being arraigned on 1 September 2016.
On 18 April 2015, you committed an offence of theft, two offences of obtaining property by deception and one offence of damaging property. The offences of theft and obtaining property by deception are found on Supreme Court file SCC 28C of 2016. The offence of damaging property is a summary offence transferred to this court pursuant to s 90B of the Magistrates Court Act 1930 (ACT). This offence is found on Supreme Court file SCC 29 of 2016.
Between 7.15 pm and 9.15 pm on 18 April 2015, you smashed the window of a 2006 Mercedes Benz sedan and took a number of items, including a handbag belonging to the daughter of the owner of the vehicle. That handbag contained a wallet which, in turn, contained a St George Bank bankcard. Between about 9.12 pm and 9.15 pm that day, you used that bankcard taken from the wallet to make two purchases totalling $100.97.
The maximum penalty for the offence of theft contrary to s 308 of the Criminal Code is 10 years imprisonment, a fine of $150,000.00, or both. The maximum penalty for the offence of obtaining property by deception contrary to s 326 of the Criminal Code is 10 years imprisonment, a fine of $150,000.00, or both. The maximum penalty for the offence of damaging property contrary to s 116(3) of the Crimes Act 1900 (ACT) (the Crimes Act) is 2 years imprisonment, a fine of $75,000.00, or both.
These charges followed the same course in the Magistrates Court as the charges of aggravated burglary and theft on file SCC 28A of 2016. You also offered to plead guilty to these charges as part of the conditional offer you made to the Director of Public Prosecutions on 16 March 2016, but this offer was rejected. These charges were listed for trial commencing 19 September 2016. On 31 August 2016, you made an unconditional offer to plead guilty to these charges and you entered a plea of guilty after being arraigned on 1 September 2016.
On 2 September 2016, you committed an offence of escaping lawful custody. On that day you escaped from the Alexander Maconochie Centre (AMC) with Patrick McCurley, another inmate at that facility. You remained at large until you were apprehended by police on 10 September 2016. The maximum penalty for the offence of escaping lawful custody contrary to s 160 of the Crimes Act is 5 years imprisonment, a fine of $15,000.00, or both.
At the time of this offence, you were subject to three suspended sentence orders imposed in the Magistrates Court on 9 July 2015. On that date for an offence of failing to appear in accordance with a bail undertaking on 17 January 2014, you were sentenced to a term of two months imprisonment, which was suspended with a Good Behaviour Order for a period of 18 months, beginning 9 July 2015 and expiring on 8 January 2017. You were also sentenced to three months imprisonment, which was suspended with a Good Behaviour Order of a similar length for an offence of failing to appear in accordance with a bail undertaking on 17 February 2014. Finally, you were sentenced to four months imprisonment, which was suspended with a Good Behaviour Order of a similar length for an offence of failing to appear in accordance with a bail undertaking on 13 February 2015.
It is accepted that you breached the suspended sentence orders by committing the offence of escape in custody so that I am required to deal with you on breaches of the orders made in the Magistrates Court on 9 July 2015.
You entered a plea of guilty to the charge of escaping custody on 12 September 2016 in the Magistrates Court, the first date that that charge was before the court.
Subjective features
You have a lengthy criminal history, although most of it involves traffic offending, minor offences of dishonesty, and two offences of common assault. You have a number of convictions for failing to appear in accordance with bail undertakings and you have a history of breaching community based orders, as the present proceedings demonstrate. You have previously served a term of full‑time imprisonment for an offence of assault.
A Pre‑Sentence Report dated 12 October 2016 was tendered at the sentence hearing. You are 21 years old and you have been known to Corrective Services since 2014 when you were subjected to bail orders. Corrective Services records indicate that your compliance with those orders was unsatisfactory, resulting in breach action. Since that time you have served further periods of bail and three post-prison Good Behaviour Orders during which your compliance was generally satisfactory. During your previous period of incarceration your behaviour was unsatisfactory on two occasions, resulting in disciplinary action for destroying property and contravening a custodial direction.
You were born in the Australian Capital Territory and you described your upbringing in positive terms, despite witnessing your parents consume illicit drugs during your childhood. You reported a good relationship with your parents, grandparents and siblings. You said that you were in a long-term relationship and that you and your partner are expecting your first child.
You left school during Year 8 and described your literacy skills as poor. You said you have difficulty in learning new information. You were in receipt of a disability support pension before being remanded in custody, but you expressed a desire to obtain employment when released.
You commenced daily cannabis use at 14 years of age. By age 16, you commenced regular use of methylamphetamine, which continued until November 2015 when you were remanded in custody.
You agree with the Statement of Facts and expressed remorse for your offending behaviour, although it was the opinion of the author of the Report that you appeared to focus on the negative impact the offences had had on you. You were assessed as at medium risk of general reoffending. Your primary risk factors were identified as your attitude to offending and your illicit substance abuse. Any supervision by Corrective Services would focus on one‑to‑one counselling, as you may lack the capability to complete other programs because of your learning difficulties.
An updated Pre‑Sentence Report dated 25 January 2017 was also prepared. This addressed the offence of escaping from custody. The updated Report notes that on 5 October last year you were assessed for suitability to participate in the Solaris Therapeutic Community within the AMC. You attended the induction for the program and, as at the date of preparation of the report, your participation was satisfactory. You have expressed an interest in engaging with an illicit drug relapse prevention support when you are released into the community. You took full responsibility for the offence of escaping custody and did not attempt to justify or minimise your behaviour. You expressed regret for your action. On the basis of this report, I accept that you have a growing appreciation of the effect of your criminal conduct on the community and on your victims.
With regard to the offences that occurred on 9 March 2015, I note that it is an aggravating circumstance that you were on bail at that time for the offences that were ultimately dealt within the Magistrates Court on 9 July 2015. In assessing the objective seriousness of these offences, I take into account that forcible entry was obtained to the premises and that the property stolen was of some significant value. I would assess these offences as being towards the mid range of offences of this type.
With regard to the offences that occurred on 18 April 2015, I note that you were also on bail at that time for the offences that were dealt with in the Magistrates Court on 9 July 2015. The damage occasioned in the motor vehicle was not great, nor was the value of the property stolen or subsequently obtained by deception. It does not appear that any significant planning went into committing these offences, which could be described as opportunistic. The offences undoubtedly caused inconvenience to the victims and a sense of violation. I would assess these offences as in the lower range of offences of this nature.
With regard to the offence of escaping custody on 2 September 2016, it does not appear that any significant planning or premeditation was involved. I take into account that you were not at liberty for a lengthy period and you committed no further offences during the time that you were at large. It is, however, an aggravating circumstance that at the time you committed this offence you were subject to the suspended sentences and Good Behaviour Orders imposed in the Magistrates Court in July 2015. The Crown urged me to find that this offence fell within the upper range of such offences because of the need for police and others to expend resources in order to recapture you. I accept that the fact that it was necessary for a period of eight days for police to direct resources towards recapturing you is a matter relevant to determining the objective seriousness of the offence, but it is a circumstance to be found in most, if not all, offences of escaping custody. The most important issue is the period of time during which you were at large and, accordingly, during which the police were required to expend those resources. The period of eight days that you were at large was not particularly lengthy. In my opinion, this falls within the mid range of such offences.
You entered pleas of guilty to all of these charges, but with the exception of the charge of escaping custody, it cannot be said that your pleas were entered at the earliest opportunity. I accept that your pleas demonstrate remorse and although the pleas with respect to most of the charges were entered at a late time, they still had utilitarian value. I will reduce the otherwise appropriate sentence for the offence of escaping custody by 25 per cent in order to reflect your plea of guilty, but I will reduce the otherwise appropriate sentences for the remaining offences by 10 per cent to reflect your pleas of guilty.
The Crown has informed me that as at 1 September 2016 you had spent 284 days in custody attributable to these offences. I therefore propose that the sentences which I will impose will commence on 22 November 2015.
I am satisfied that the present offences call for terms of immediate imprisonment. In determining the appropriate sentences, I take into account your youth, which calls for greater emphasis on rehabilitation than on punishment and deterrence.
I note with regard to the offence of escaping custody that your co‑offender was sentenced to 18 months imprisonment in the Magistrates Court on 9 November 2016. Your co‑offender was some eight years older than you and has a more significant criminal history. Whilst he was at liberty for a marginally shorter period than you were, he also committed further offences while he was at large from the AMC. In my opinion, a lesser sentence for that offence than the sentence imposed on your co‑offender is warranted.
The Crown submitted that the sentence for the offence of escaping custody should be served consecutively upon the sentences otherwise imposed. This would be generally consistent with the terms of s 72 of the Crimes (Sentencing) Act 2005 (ACT), although the court retains a discretion under that provision to order that a sentence for an offence committed whilst an offender is in lawful custody be served concurrently, or partly concurrently and partly consecutively, with any existing sentence of imprisonment. In my opinion, it is appropriate, bearing in mind your age and reasonable prospects for rehabilitation, to impose a sentence for the offence of escape in custody, which is partly concurrently and partly consecutive with other sentences.
Sentence
I record a conviction with regard to the offence of escaping custody which occurred on 2 September 2016. The recording of this conviction formally places you in breach of the Good Behaviour Orders imposed in the Magistrates Court on 9 July 2015. I cancel the Good Behaviour Orders imposed by the Magistrate and I impose the sentences that were suspended at that time. Each of those sentences will commence on 22 November 2015 and will be served concurrently. The longest sentence will therefore expire on 21 March 2016.
I record convictions with respect to the offences of aggravated burglary and theft which occurred on 9 March 2015. For the offence of aggravated burglary, I impose a sentence of 21 months imprisonment, commencing on 22 March 2016 and expiring on 21 December 2017. I have reduced this from two years imprisonment to reflect your plea of guilty.
For the associated offence of theft, I impose a sentence of 13 months imprisonment, to be served concurrently with the sentence imposed on the aggravated burglary offence. I have reduced this sentence from one of 15 months imprisonment to reflect your plea of guilty.
I record convictions with respect to the offences of theft, obtaining property by deception and damaging property which occurred on 18 April 2015. For the offence of theft, I impose a sentence of 10 months imprisonment, commencing on 22 August 2017 and expiring on 21 June 2018. I have reduced this sentence from one of 12 months imprisonment to reflect your plea of guilty.
For each of the offences of obtaining property by deception, I impose a sentence of 10 months imprisonment, commencing on 22 January 2018 and expiring on 21 November 2018 on each charge. I have reduced these sentences from sentences of 12 months imprisonment in order to reflect your pleas of guilty. For the offence of damaging property, I impose a sentence of three months imprisonment, commencing on 22 October 2018 and expiring on 21 January 2019.
For the offence of escape in custody on 2 September 2016, I impose a sentence of 15 months imprisonment, commencing on 22 September 2018 and expiring on 21 December 2019.
The aggregate sentence which I have therefore imposed is one of four years and one month imprisonment, commencing on 22 November 2015 and expiring on 21 December 2019. Bearing in mind your youth and reasonable prospects for rehabilitation, I set a non-parole period of two years and one month, commencing on 22 November 2015 and expiring on 21 December 2017.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 24 March 2017 |
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